The press frequently report on pre-nups and over the last few years they have become more and more accepted as a prudent insurance policy to which it would be foolish not to subscribe when over 40% of marriages end in divorce.
Post-nups, ie those agreements that are entered into after a marriage, are not as widely talked about and people are less aware of the legal position in relation to them. The legal position in relation to pre-nups, however, has become very clear: provided both parties have obtained legal advice and the agreement reached is one that is fair and within the parameters of what a judge might award on divorce, pre-nuptial agreements will generally be binding, assuming that both parties have provided full and frank disclosure.
There is an additional element of a pre-nup which is always a factor to consider and that is whether there has been any duress to enter into the agreement. This is a factor which is arguably less relevant when it comes to assessing the enforceability of a post-nuptial agreement as there may not be the same pressurising influences such as the fact that the venue has been booked, the dress has been made and the banns have been read when the agreement is first presented.
As with pre-nups, post-nups are gaining in popularity. They are very useful protective mechanisms where a relationship has been in difficulty but a couple have chosen to reconcile or perhaps where one party has received a substantial inheritance. Sometimes they are entered into because the advantages of a pre-nup were not considered in sufficient time before a couple’s wedding day.
Last week, the case of a wealthy property tycoon, William Hopkins and his wife was heard by the court. Despite the fact that the couple had had an affair spanning three decades, their marriage broke down within less than two and a half years.
Mrs Hopkins said that she was bullied into signing the agreement in August 2011, when the marriage was already in difficulty, and that she entered into it against the advice of her lawyers. There was no proper financial disclosure but at the time, Mrs Hopkins said she was “entirely happy” with the agreement reached. It was only after 16 months that Mrs Hopkins sought to challenge it.
What was crucial in this case was the fact that Mrs Hopkins had obtained legal advice but made a clear decision to enter into the agreement, despite advice that it might be insufficient to meet her needs and it did not represent a good deal for her.
The judge was clear that Mrs Hopkins would be bound by the post-nup and considered that she had signed the document of her own free will, having received “copious volumes of legal advice”.
Lucy Cummin commented: "This is an interesting development in the legal position surrounding post-nuptial agreements. It is significant that the agreement was entered into a few months after the case of Radmacher v Granatino, the leading case which sets out the criteria to be met if pre-nups are to be binding, was decided. It is now clear these criteria are as relevant to post-nuptial agreements as they are to pre-nuptial agreements.”